DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS FALLS CHURCH, VIRGINIA AND COUNCIL 215, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF HEALTH AND HUMAN
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA
COUNCIL 215, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 94 FSIP 128
DECISION AND ORDER
Council 215, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia (Employer).
Following an investigation of the request for assistance, the Panel determined that the impasse arising from mid-term bargaining over the Pre-hearing Conference and Screening (PHCS) Program should be resolved on the basis of an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the representative would notify the Panel of the status of the dispute, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel's determination, Mrs. Ellen Kolansky met with the parties on January 4, 1995, at the Panel's offices in Washington, D.C. During the informal conference, the parties resolved several minor matters. Following the conference, the parties agreed to another provision. Mrs. Kolansky has reported to the Panel on the remaining sections of the memorandum of understanding (MOU) in dispute and it has now considered the entire record.
The Employer is responsible for adjudicating appeals of denials of retirement, survivors, medicare, disability, black lung, and Supplemental Security Income claims, and defending its appellate decisions before the Federal courts. Council 215 represents 4,500 bargaining-unit employees in the Office of Hearings and Appeals (OHA) who are part of a nationwide consolidated unit of 48,200; the main job titles at each OHA office are: (1) hearing clerk, (2) docket clerk, (3) hearing assistant, (4) paralegal specialist (formerly hearing analyst),(1) and (5) attorney advisor or staff attorney (Schedule A Excepted Service). The journeyman level for paralegal specialists and staff attorneys is GS-12. Council 215 represents about 400 paralegal specialists and 250 OHA staff attorneys (the latter group is located in Atlanta, Puerto Rico, Boston, and at the headquarters); another union represents 410 other attorneys nationwide. Administrative law judges (ALJs) and hearing office chief judges also work in OHA offices; neither group is part of the bargaining unit. The parties' master collective-bargaining agreement (MCBA) will expire on November 17, 1996.
The PHCS program was designed to help reduce the monumental backlog in appeals of disability claim denials; over 500,000 such appeals are pending. Currently, some claimants must wait for a year or more before a hearing is scheduled in their case. Both parties believe that the situation has reached crisis proportions. Under the program, at the 132 hearing offices located nationwide, PHCS duties normally performed by ALJs would be delegated to other employees. Such employees would screen cases to find those in which favorable decisions on disability claim appeals are likely to be granted. In addition, they would search files or conduct investigations to obtain documentary evidence to justify disability allowances. When employees find such evidence, they may recommend that ALJs grant the allowances. Under certain circumstances, they also would conduct pre-hearing conferences with claimants' representatives to narrow the issues, encourage the parties to stipulate to matters not in dispute, and substantiate the onset date for disabilities. Two pilot studies were conducted to test the effectiveness of the program.
ISSUES AT IMPASSE
The key issue in dispute concerns whether, in addition to attorney advisors, paralegal specialists should be permitted to participate in the PHCS program, including conducting pre-hearing conferences with claimants' representatives. Numerous additional unresolved matters concern other aspects of the parties' MOU such as nationwide implementation, further negotiations over the forms to be used and changes to conditions of employment related to the program, employees' requests to interrupt or curtail participation in the program, and the distribution of cases to participants.
POSITIONS OF THE PARTIES
1. PHCS Program Participants
a. The Union's Position
The Union essentially proposes that any GS-12 paralegal specialist with 4 years of experience whose performance is rated fully successful should be considered qualified to participate in the PHCS program. It asserts that, fundamentally, its proposal concerns the numbers, types, and grades of employees to be assigned to PHCS program duties. Such permissive areas under § 7106 (b)(1) of the Statute are made mandatory by Section 2 of Executive Order 12871. In addition, under Association of Civilian Technicians, Montana Air Chapter No. 29 v. Federal Labor Relations Authority, 22 F.3d. 1150 (D.C. Cir. 1994), such rights should prevail over the Employer's claims of no duty to bargain based on competing management's rights in §7106(a). On the merits, paralegal specialists should be full-fledged participants in the program. At the GS-12 level, such employees are well versed in the subject area because they regularly draft favorable and unfavorable disability appeal decision letters for ALJs. Non-attorneys also conduct pre-hearing screenings in Region III. In addition, they often speak by telephone to claimants' representatives about matters related to appeals, an activity analogous to pre-hearing conferences. It is particularly distressing that the Employer would pass over these employees and, with approval of an ALJ, let lower graded, less experienced attorneys perform these duties. Furthermore, work involving determinations favorable to claimants is actually easier than work on denials; it would be unfair to assign such a large proportion of easy work only to attorney advisors. Finally, the Employer needs paralegal specialists to perform such work since there are only 650 to 700 GS-12 attorneys, far short of the 1,100 that the Employer agrees is needed to cope with the disability backlog.
b. The Employer's Position
The Employer's proposal is:
The qualifications for participation in the PHCS Program are determined by management as follows: All GS-12 attorney advisors with at least 2 years of OHA or Social Security Administration (SSA) program experience, at least 1 year of which is at least at or equal to the GS-12 level, with a fully successful rating, are qualified to participate in the PHCS program. Attorney Advisors who have not attained the GS-12 level, or who have less that 2 years of OHA or SSA program experience, may participate in the PHCS program subject to the approval of the Chief Administrative Law Judge.
Preliminarily, the Employer contends that the Union's proposal to assign PHCS program duties to paralegal specialists is nonnegotiable. It believes that only staff attorneys are qualified to participate in the program.(2) The determination of "particular qualifications and skills needed to perform the work" is complementary to the right to assign that work and, therefore, is a management right under § 7106 (a) of the Statute.(3) Furthermore, placing non-attorneys in a position where they might have to render what amounts to legal judgments about whether claimants have met statutory requirements, and deal directly with claimants' attorneys without direct professional supervision, would condone the unauthorized practice of law; 85 percent of claimants' representatives are attorneys. On the merits, as a group, paralegal specialists are not qualified to perform such work efficiently on a high volume basis, especially since such work includes reaching somewhat "subjective" onset date determinations through negotiations with claimants' attorneys. Although until 1989, non-attorney paralegals conducted pre-hearing "screenings" as part of an initiative to move cases more quickly, such screenings do not involve duties comparable to those to be assigned in the PHCS program. The PHCS program was shown to be effective by two pilot studies in which only attorney advisors participated; during the pilots, ALJs accepted staff attorney favorable outcome recommendations 99 percent of the time. Such a high acceptance rate demonstrates the appropriateness of selecting attorneys to participate in the program. Inclusion of paralegal specialists could, on the other hand, undermine its proven effectiveness.
Preliminarily, we need not address the allegation that the Union's proposal is nonnegotiable as we believe that the Employer's provides a better resolution of the dispute. It is uncontested that the disability backlog has reached crisis proportions, and that the PHCS program is one effective tool for reducing that backlog. While certain paralegal specialists, especially those with law degrees, may be suitable for inclusion in the program, on balance, we are persuaded by the evidence presented that, as a group, they should not be permitted to participate in the program. Because it deals with expediting appeals of a large number of cases, the program does not afford the luxury of screening case assignments to find those which would be the most appropriate for paralegal specialists. Furthermore, the high degree of acceptability of attorney advisors' recommendations during the pilot studies demonstrated that they could perform the PHCS Program tasks ably. Finally, attorney advisors who have a professional education should be better able to handle difficulties that could arise during pre-hearing conferences with claimants' representatives. For these reasons, we shall order the adoption of the Employer's proposal.
2. Additional Provisions for the PHCS MOU
a. The Union's Position
Essentially, the Union proposes that: (1) the MOU remain silent on such matters as the Commissioner's approval of the PHCS program and the Employer's non-waiver of its rights under § 7106 (a); (2) the program not be implemented nationwide; (3) the parties bargain over changes to current personnel policies, practices, and other conditions of employment related to the PHCS program; (4) employees be permitted to request to limit their participation in the program; (5) the Employer establish and fill a master docket clerk position when an office lacks such a position and, in the meantime, fill it temporarily through a rotated detail under Article 26 of the MCBA; (6) PHCS cases be distributed equally, and the participant who reviews the case also conduct the pre-hearing conference, if necessary, and draft the decision letter; (7) employees assigned off-site training be on official travel in accordance with Article 8 of the MCBA; and (8) sample form modifications be negotiated and a joint committee be formed to draft the HALLEX transmittal(4) for the program.
By proposing that the agreement remain silent on the items in (1) above, the Union essentially expresses its disappointment that the Employer is failing to follow the cooperative mandates of the Executive Order. With respect to employees' requests to limit participation in the PHCS program, some employees should be permitted to opt out of the program because they are disabled or have other substantial reasons. Regarding travel, the parties basically should follow MCBA sections as they apply; the MCBA also should be applied after master docket clerk positions are established or employees are detailed into such positions. As to case distribution, employees who already have developed familiarity with a case file because they screened the case initially should be assigned such cases at later stages as well. Finally, such matters as modifications to forms, development of the HALLEX transmittal, and changes to existing conditions of employment related to the program, should be subject to bargaining just as other changes in conditions of employment generally are; the Union should have a full role as part of a committee established to develop the forms and guidance to be used.
b. The Employer's Position
Basically, the Employer proposes that: (1) the MOU indicate such matters as the Commissioner's approval of the program and its non-waiver of its rights under § 7106 (a); (2) the program be nationwide; (3) the Union be given notice and an opportunity to bargain over changes in personnel policies, practices and other conditions of employment in offices participating in the PHCS program in accordance with the MCBA; (4) employees be permitted to request to suspend temporarily their participation in the program; (5) it would follow law, rule, regulation, and the MCBA regarding offices without a master docket clerk position; (6) rotation of PHCS case assignments be subject to workload considerations; (7) local OHA offices be permitted to modify sample forms without negotiating; and (8) Union mark-ups and comments on HALLEX instructions be considered, and included in any background book before instructions are published.
Inclusion of the Commissioner's approval in the MOU is important to show that she supports the program. Regarding indicating that management has not waived any § 7106 (a) rights, the Union's insistence to the end that the Employer waived such rights suggests that the sentence should be included for clarification. If the Employer's proposal on who will participate in the program were to be adopted, questions regarding use of HALLEX and references to "qualified participants" would become moot. Since the MCBA has provisions that can be applied when the master docket clerk position is filled and employees travel for training purposes, it makes more sense to follow that agreement than to repeat such provisions or create new procedures in the MOU. With respect to temporary suspensions by participants, if a conflict of interest such as a case involving a relative should arise, such suspensions would be necessary. Subjecting rotation of PHCS case assignments to workload considerations allows supervisors the flexibility to adjust assignments when one employee takes longer than others to process cases; it provides a mechanism to ensure that delays experienced by claimants would be shorter and more uniform in length. If the Union believes that cases are being assigned unfairly, the matter could be grieved. Multiple local negotiations over minor modifications to the sample forms would be burdensome. Sample forms are considered just that, sample guidance; hearing offices are expected to modify such forms to facilitate case processing and recognize local claimant representatives' preferences. This reflects the status quo. The Union would be granted a role in marking up and commenting on such forms and the HALLEX transmittal prior to publication.
After evaluating the evidence and arguments presented, we shall order the parties to adopt the Employer's proposals to resolve the remaining issues in dispute. In our view, had the parties been able to resolve the main issue concerning participants, these more minor matters would have fallen into place. With respect to the scope of implementation, because the parties view the PHCS program as an effective tool to combat the disability backlog, we find that nationwide implementation, following the two successful pilot studies, represents a reasonable progression. We are also persuaded, on balance, that items such as noting the Commissioner's approval of the PHCS program and the Employer's non-waiver of rights under the Statute, should be included in the MOU; a statement affirming the Commissioner's support for the PHCS program, for example, conveys a positive message. With regard to minor changes in forms, we do not find that the Union has demonstrated a need for changing the current practice w